Case 1:14-cv-00130-GMS Document 93 Filed 04/06/15 Page 1 of 23 PageID #: 6989
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`ADIDAS AG and
`ADIDAS AMERICA, INC.,
`
`
`
`Plaintiffs,
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`UNDER ARMOUR, INC. and
`MAPMYFITNESS, INC.,
`
`
`
`
`
`
`
`Defendants.
`
`
`
`
`
`OF COUNSEL:
`
`Mitch Stockwell
`KILPATRICK TOWNSEND & STOCKTON LLP
`1100 Peachtree Street NE, Suite 2800
`Atlanta, GA 30309
`(404) 815-6500
`
`Matias Ferrario
`Michael T. Morlock
`Caroline K. Wray
`KILPATRICK TOWNSEND & STOCKTON LLP
`1001 West Fourth Street
`Winston-Salem, NC 27101
`(336) 607-7300
`
`April 6, 2015
`
`
`
`C.A. No. 14-130 (GMS)
`
`JURY TRIAL DEMANDED
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Jeremy A. Tigan (#5239)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`jtigan@mnat.com
`
`Attorneys for Plaintiffs
`
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`PLAINTIFFS’ RESPONSIVE CLAIM CONSTRUCTION BRIEF
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`UA-1011.001
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`Case 1:14-cv-00130-GMS Document 93 Filed 04/06/15 Page 2 of 23 PageID #: 6990
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`TABLE OF CONTENTS
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`I.
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`Introduction ..........................................................................................................................1
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`II. Werner Family Claim Terms ...............................................................................................1
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`A.
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`B.
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`C.
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`D.
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`“at least one of a set including…and…”..................................................................1
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`“rating tool” / “user rating” / “route rating “/ “individual rating” ...........................3
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`“route path” ..............................................................................................................5
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`“while the first user is engaged in the physical activity” .........................................8
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`III.
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`Ellis Family Claim Terms ....................................................................................................8
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`A.
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`B.
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`C.
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`D.
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`E.
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`F.
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`“Base Station” ..........................................................................................................8
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`“Separate Input Device” / “Separate Device” ........................................................13
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`“Position or Speed Data” / “Position or Speed Information” / “Position Data” ....15
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`“Position Points” ....................................................................................................17
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`“During the physical activity” ...............................................................................17
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`“One of … and ….” ...............................................................................................19
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`IV.
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`Conclusion .........................................................................................................................19
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`i
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`UA-1011.002
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`Case 1:14-cv-00130-GMS Document 93 Filed 04/06/15 Page 3 of 23 PageID #: 6991
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`TABLE OF AUTHORITIES
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`Cases
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`Baldwin Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338 (Fed. Cir. 2008) ............................... 14
`
`Epos Techs. Ltd. v. Pegasus Techs. Ltd., 766 F.3d 1338 (Fed. Cir. 2014) ..................................... 5
`
`Fujifilm Corp. v. Motorola Mobility LLC., No. 12-cv-03587-WHO, 2015
`WL 1265009 (N.D. Cal. Mar. 19, 2015) .......................................................................... 2-3
`
`H-W Tech., L.C. v. Overstock.com, Inc., 758 F.3d 1329 (Fed. Cir. 2014).................................. 4, 5
`
`i4i Ltd. P'ship v. Microsoft Corp., 598 F.3d 831 (Fed. Cir. 2010) ......................................... 12, 16
`
`IMS Health Inc. v. Symphony Health Solutions Corp., C.A. No. 13-2071-GMS
`slip op. (D. Del. Feb. 12, 2015) .......................................................................................... 5
`
`Intellect Wireless, Inc. v. Kyocera Commc'ns, Inc., No. 08 C 1350, 2010
`WL 2680538 (N.D. Ill. June 29, 2010) ................................................................. 12, 16, 17
`
`Johns Hopkins University v. CellPro, 894 F. Supp. 819 (D. Del. 1995) ...................................... 18
`
`Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) ....................................................... passim
`
`Safas Corp. v. Etura Premier, L.L.C., 293 F. Supp. 2d 436 (D. Del. 2003) ................................. 18
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`Schering Corp. v. Amgen Inc., 18 F. Supp. 2d 372 (D. Del. 1998) .............................................. 18
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`SuperGuide Corp. v. DirecTV Enters., 358 F.3d 870 (Fed. Cir. 2004) .......................................... 1
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`Trading Techs Int'l, Inc. v. eSpeed, Inc., 595 F.3d 1340 (Fed. Cir. 2010) .................................... 15
`
`VendoNet, Inc. v. Redbox Automated Retail, LLC, No. 13-cv-03475, 2014
`WL 4555287 (N.D. Ill. Sept. 15, 2014) .............................................................................. 3
`
`
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`ii
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`UA-1011.003
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`Case 1:14-cv-00130-GMS Document 93 Filed 04/06/15 Page 4 of 23 PageID #: 6992
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`I.
`
`Introduction
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`Defendants’ opening brief relies on Plaintiffs’ infringement contentions as the basis for
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`Defendants’ claim construction positions.1 Although Defendants do so under the guise of
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`creating inconsistencies or paradoxes, the arguments betray their true purpose, to create non-
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`infringement positions. Defendants’ march to rewrite the claims violates practically every
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`cannon or established principle of claim construction from reading limitations into the claims,
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`rewriting otherwise plain and ordinary terms, limiting claims to only a single embodiment and
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`excluding other disclosed embodiments, relying on extrinsic evidence to vary what is plainly
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`supported by the specification, and so on.
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`Plaintiffs’ proposed constructions on the other hand find clear support in the
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`specification, follow the plain and ordinary meaning of the terms, and are consistent with the
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`teachings and disclosures of the Werner and Ellis patent specifications.
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`II. Werner Family Claim Terms2
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`A.
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`“at least one of a set including…and…”
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`Defendants’ argument relies entirely on one inapplicable case and a select example from
`
`the specification. When the correct legal standard is used, and the entire specification is
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`considered, adidas’s proposed construction is the correct and supported one.
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`Defendants’ rely on SuperGuide Corp. v. DirecTV Enters., 358 F.3d 870, 886 (Fed. Cir.
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`2004), to support what amounts to re-writing the claims to recite “a set” rather than “at least one
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`of” a set. But SuperGuide is plainly distinguishable. In SuperGuide, “[e]very disclosed
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`embodiment [taught] that the user must choose a value for each designated category.” Id. at 887.
`
`
`1
`See, e.g., D.I. 86 at 6, 10-13, 15.
`2
`The Werner patents share a specification and all citations to the patent specification in
`this section are to the ’867 Patent.
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`1
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`UA-1011.004
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`Case 1:14-cv-00130-GMS Document 93 Filed 04/06/15 Page 5 of 23 PageID #: 6993
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`In contrast, the Werner specification discloses embodiments that comprise only one or two of the
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`listed tools as explained in detail in adidas’s opening brief. (D.I. 85 at 6.)
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`Defendants’ statement that the “only toolset embodiment disclosed in the 752 Patent
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`includes one of each”3 a review, rating, and annotation tool is incorrect; in fact, the specification
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`teaches the opposite. Nothing in the ’752 specification requires that all three tools be present for
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`the invention to work. adidas’s opening brief identified at least one such example. (D.I. 85 at 6.)
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`There are other examples as well. Figure 2A and the accompanying text discloses a toolset that
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`allows the user to “annotate a route,” but that embodiment does not include, or much less
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`require, a review tool or a rating tool. See J.A. at Tab 1, col. 4:33-37 (“portable fitness device 12
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`may include one or more manually manipulable input buttons 80 that permit athlete 14 to
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`annotate a route while athlete 14 is traversing the route”). Even the embodiment Defendants
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`cite, Figure 5B, states that the ability to include information in addition to an annotation is
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`preferable, but not required. See J.A. at Tab 1, col. 15:60-65 (“in addition to supporting user
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`annotation of route maps 442 and 500, GUI window 440 preferably permits the user to enter
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`additional information.”) (emphasis added). Other examples, such as Figure 4E (shown
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`annotated at page 8 of adidas’s opening brief ), disclose a “route rating,” and “textual reviews,”
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`but do not show (or again, much less require) an annotation tool. See J.A. at Tab 1, Fig. 4E and
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`col. 12:21-37.4
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`SuperGuide is inapplicable where, as here, the patent specification discloses various
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`embodiments that may optionally include one or more of the various tools in different
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`combinations. See, e.g., Fujifilm Corp. v. Motorola Mobility LLC., No. 12-cv-03587-WHO,
`
`
`3
`D.I. 86 at 6.
`4
`Figure 4E does not include reference numbers for the route rating or reviews. Through a
`typographical or printing error, these reference numbers, 360 and 362, are included in the
`patent specification but not the Figure.
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`2
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`UA-1011.005
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`Case 1:14-cv-00130-GMS Document 93 Filed 04/06/15 Page 6 of 23 PageID #: 6994
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`2015 WL 1265009 at *8 (N.D. Cal. Mar. 19, 2015) (“SuperGuide did not erect a universal rule of
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`construction for all uses of ‘at least one of’ in all patents, however. The SuperGuide court’s
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`construction of ‘at least [one] of’ was based on the particular facts of the particular patent at
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`issue there.”), citing VendoNet, Inc. v. Redbox Automated Retail, LLC, No. 13-cv-03475, 2014
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`WL 4555287, at *4 (N.D. Ill. Sept. 15, 2014) (“[SuperGuide] did not announce that its rule of
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`grammar was a mandatory rule of claim construction, to be used even when unnecessary to serve
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`the purpose of the invention.”). Werner simply does not teach that every embodiment must have
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`all three of a rating, review, and annotation tool. (See, e.g., D.I. 85 at 6.)
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`Defendants’ construction should be rejected as an improper attempt to narrow the claim
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`and escape infringement. This term should be given its plain and ordinary meaning, i.e., that “at
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`least one of” means “one or more.”
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`B.
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`“rating tool” / “user rating” / “route rating “/ “individual rating”
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`Each of the proposed “rating” terms should be given its plain and ordinary meaning.
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`Defendants propose a litigation motivated construction of “rating” that requires the rating to be a
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`“relative rank” and further attempts to limit these terms by requiring action by a user.
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`Defendants’ “relative rank” proposal finds no support in the specification, unnecessarily
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`deviates from the plain and ordinary meaning, and creates confusion. First, the specification
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`never limits the term “rating” to only those ratings that are relative.5 Defendants’ only
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`specification citation states “a ratings section 494 in which the user can award the route between
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`one and four ‘stars.’” (D.I. 86 at 7 citing J.A. Tab 5 at 15:12-14, Fig. 5B.) Nothing about this
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`language suggests that the rating must be “relative.” And, even if a one star rating is a relative
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`rating compared to a three star rating, Defendants’ proposed construction seeks improperly to
`
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`5
`Indeed the word “relative” is used only once in the entirety of the ’867 patent, to describe
`“relative elevation.” J.A. Tab 1 at 15:59
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`3
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`UA-1011.006
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`Case 1:14-cv-00130-GMS Document 93 Filed 04/06/15 Page 7 of 23 PageID #: 6995
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`import a single disclosed embodiment as a limitation of the claim. See Phillips v. AWH Corp.,
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`415 F.3d 1303, 1323 (Fed. Cir. 2005)(en banc) (warning against importing limitations from
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`specific embodiments into claims).
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`Second, the specification expressly teaches ratings that are not relative. Some claims
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`even require that the rating be a written review. See, e.g., J.A. Tab 7 at claim 16 (“the route
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`rating includes written feedback”). This written feedback is certainly not relative. As claim 16
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`depends from claim 1, under basic principles of claim differentiation, the term “rating” cannot be
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`limited to a relative rank. See H-W Tech., L.C. v. Overstock.com, Inc., 758 F.3d 1329, 1333
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`(Fed. Cir. 2014); see also Phillips, 415 F.3d at 1314-15.
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`Third, Defendants’ proposed construction creates ambiguity where the plain and ordinary
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`meaning of the term is clear. For example, common sense dictates that different users may rate
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`routes based on different personal criteria – one user may rate a steep route highly, while a
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`different user may rate that same route with a low score. Using this example, even if a number
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`of stars is “relative,” the star ratings cannot relate when the rating is the result of different
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`criteria. The term relative finds no support in the specification, unnecessarily deviates from the
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`plain and ordinary meaning, and creates confusion over what is relative.
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`Defendants’ proposed construction also seeks to insert another limitation, namely, the
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`concept that the rating tool terms must contain a limitation requiring assignment by a user. But
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`the specification discloses a number of embodiments where the ratings are not “assigned by a
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`user.” For example, Figure 4E, discussed above, depicts an embodiment in which the rating was
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`not assigned by a user, but rather was calculated from multiple reviews. Although it is correct
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`that individual ratings have been assigned by a user, it is not correct that the overall rating shown
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`in Figure 4E was assigned by a user. Thus, Defendants’ construction improperly excludes an
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`4
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`UA-1011.007
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`Case 1:14-cv-00130-GMS Document 93 Filed 04/06/15 Page 8 of 23 PageID #: 6996
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`embodiment disclosed in the specification, inviting legal error. See Epos Techs. Ltd. v. Pegasus
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`Techs. Ltd., 766 F.3d 1338, 1347 (Fed. Cir. 2014) (reversing construction that reads out preferred
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`embodiments).
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`As to “individual rating” and “rating tool,” Defendants argue that because claim 19
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`recites that the individual rating is provided by a second user, all ratings are provided by users.
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`This turns the law of claim differentiation on its head. When one claim does not contain a
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`limitation but another claim does, it is presumed that the limitation cannot be read into the
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`former claim. See H-W Tech, 758 F.3d at 1333; see also Phillips, 415 F.3d at 1314-15. Claim 19
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`depends from claim 1 and recites that the individual rating is provided by a second user. Claim
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`differentiation therefore requires that claim 1 is not so limited, i.e., claim 1 does not require that
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`the individual rating be assigned by a second user. Rather, that is just one possible rating source.
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`These terms are neither scientific nor are they terms of art that a lay juror would not
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`understand. As such, Plaintiffs’ proposed construction that the terms be given their plain and
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`ordinary meaning is correct. Order Construing Terms, IMS Health Inc. v. Symphony Health
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`Solutions Corp., C.A. No. 13-2071-GMS, slip op. at 4 n.7 (D. Del. Feb. 12, 2015) (Ex. A)
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`(holding plain and ordinary meaning appropriate where term, as understood by one of skill in the
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`art, is also apparent to the lay audience).
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`C.
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` “route path”
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`A “route path” is a simple, readily understood term that should be given its plain
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`meaning. Defendants’ construction imports two extraneous words and phrases, including
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`“predetermined” and “series of geographic points.” These extraneous limitations are improper.
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`See Phillips, 415 F.3d at 1323.
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`Defendants argue that because the terms require some comparison between the user’s
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`location and the route path, a complete path, from start to finish, must be known and displayed
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`5
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`UA-1011.008
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`Case 1:14-cv-00130-GMS Document 93 Filed 04/06/15 Page 9 of 23 PageID #: 6997
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`before the time of comparison. Defendants, however, ignore the plain and ordinary meaning of
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`the term “path.” Path is defined as “the course or direction in which a person or thing is
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`moving”6 and as the exemplary dictionary sentence states, “the missile traced a fiery path in the
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`sky.”7 Thus, a path can include both pre-determined routes as well as routes that are being
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`traced, i.e. “in which a person or thing is moving.” The following comparison illustrates these
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`two scenarios, both of which come from Plaintiffs’ Infringement Contentions:
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`Exhibit D to Defendants Opening Claim
`Construction Brief (D.I. 86.)
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`- Figure below shows a route path
`traced as the user is moving;
`- Purple line shows route path;
`- Box is runner’s position;
`- Blue dot is second user’s position.
`
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`Exhibit E to Plaintiffs First Supplemental
`Objections and Responses to Defendants’
`First Set of Interrogatories (Nos. 1 & 12)
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`- Figure below shows a route path as a
`predetermined route;
`- Red line shows route path;
`- Green dot is start point;
`- Blue dot shows the user’s location.
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`By arguing that the route path must be predetermined (as shown in Exhibit E above), Defendants
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`ignore the other half of the plain and ordinary meaning of the term (as shown in Exhibit D).
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`Thus, Defendants’ proposed construction seeks to exclude a whole class of route paths, i.e., those
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`that show the route traced by a runner and his/her present location.
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`6
`J.A. at Tab 12, Oxford Dictionary Definition of “path,” available at
`http://www.oxforddictionaries.com/us/definition/american_english/path (last accessed
`March 30, 2015).
`Id.
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`7
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`6
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`UA-1011.009
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`Case 1:14-cv-00130-GMS Document 93 Filed 04/06/15 Page 10 of 23 PageID #: 6998
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`Even aside from the support in the ordinary meaning of the term, the intrinsic evidence
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`requires rejection of Defendants’ proposed construction. Defendants cite a single embodiment in
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`the specification to support injecting the extraneous term “predetermined” into the construction,
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`while ignoring other parts of the specification. For example, various dependent claims
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`specifically recite “predetermined” routes in direct contradiction of Defendants’ position. See
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`’867 patent, J.A. at Tab 1, claim 3 (“route information regarding a predetermined route for the
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`fitness activity”);’149 patent, J.A. at Tab 2,claim 12 (“to process information regarding a
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`predetermined route.”). The specification also describes FIGS. 5A-C, which show route paths,
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`as displaying “real-time routes . . . currently being traversed by an athlete.” J.A. at Tab 1 col.
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`13:64-66).
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`Next, Defendants improperly conflate the specification’s use of the phrase “route map”
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`with the claim term “route path.” The specification explains that a “[r]oute map 382 includes
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`terminal points 384a, 384b and a route path 386.” J.A. at Tab 1, col. 12:58-60. Thus, the
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`specification uses the term “route path” to describe the representation of a route on a display.
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`See J.A. at Tab 1, FIG. 4F (element 386), 5B (element 446), and 5C (element 504). That
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`representation of a route is not itself a set of “geographical points,” but instead is the
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`representation of the route in lines and curves that may be overlaid on a map. Indeed, the only
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`geographic points described in the specification are the terminal points / markers, which are
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`distinguished in the specification from the “route path” that connects them. See J.A. at Tab 1,
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`13:2-6 (“Route wizard 222 preferably displays marker location information 392 in association
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`with marker 390a to indicate the geographic location of marker 390 (e.g., the distance between
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`marker 390a and terminal 384a along route path 386).”).
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`7
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`UA-1011.010
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`Case 1:14-cv-00130-GMS Document 93 Filed 04/06/15 Page 11 of 23 PageID #: 6999
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`Both of Defendants’ proposed constructions should be rejected. They contradict the plain
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`meaning of the term, seek to unnecessarily limit the meaning of the terms, and find no support in
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`the specification.
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`D.
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`“while the first user is engaged in the physical activity”
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`Defendants acknowledge that the specification repeatedly confirms that the phrase “while
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`. . . engaged in the physical activity” means in substantially real-time. (D.I. 86 at 11.) Indeed,
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`claim 1 of the ‘858 patent (J.A. Tab 6) requires showing, “while the first user is engage in
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`physical activity,” a first user’s location along a route path on a second user’s computer.8
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`“While” commonly means at the same time and this limitation would make little sense unless the
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`display occurred in substantially real time. Otherwise it would not show the user’s location, but
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`the user’s past location.
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`Plaintiffs’ opening brief showed how its proposed construction aligns the meaning of the
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`term with the way it is used repeatedly in embodiments throughout the specification. (D.I. 85 at
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`13.) Thus, the intrinsic record supports a definition of this term requiring substantially real-time.
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`III. Ellis Family Claim Terms9
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`A.
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`“Base Station”
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`A base station is simply an access point that may send or receive data to or from the
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`claimed devices, or store, analyze or display received data. Defendants nonetheless attempt to
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`engraft multiple limitations – that a base station must be “local,” separate from the worn devices
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`8
`Claim 1 reads in part “initiating a visual display on a remotely located second user's
`client computer system while the first user is engaged in the physical activity … wherein
`the visual display further includes an indication of the first user's location with respect
`to the route path.” As noted by the emphasized portions, “a visual display” including
`“an indication of the first user’s location with respect to the route path” “while the user
`first user is engaged in the physical activity” J.A. at Tab 6, col. 17:33-37.
`All of the patents in the Ellis family share a specification. Thus, for convenience, all
`citations to the patent specification in this section are to the ’815 Patent.
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`9
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`8
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`UA-1011.011
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`Case 1:14-cv-00130-GMS Document 93 Filed 04/06/15 Page 12 of 23 PageID #: 7000
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`and limited to allowing communications between the devices and one of a network or PC. None
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`of those limitations is supported by the intrinsic evidence and each would erroneously read out
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`disclosed embodiments.
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`Local: No claim language supports limiting the base station to a “local”10 access point.
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`Defendants cite text that says that “when the MPN is within range” the base station 14 acts as
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`part of the MPN as it “may include a wireless communication device to communicate with one
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`or more INCs in the MPN.” J.A. at Tab 3, col. 16:33-43. Nothing limits the “range” to
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`something “local.” Likewise, the references to cables or “other connections” described at column
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`16:40 do not limit the length of those connections so as to require the base station to be “local.”
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`To the contrary, the specification repeatedly confirms that skilled persons would
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`understand that the wireless communication described would allow for remote or local
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`communication. The cited text references Figure 100, which shows a runner or biker with
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`devices communicating wirelessly to base station 15 and various personal computers. The
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`athlete does not carry a PC while exercising and the figure confirms skilled persons would
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`understand the base station could be remote from the user. See also id. at Fig. 54. Likewise, the
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`specification references “other wireless method” (J.A. at Tab 3, col. 27:45-53) and also describes
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`using MPNs for voice communications (32:48-50) and doing so wirelessly (36:60-62) through,
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`e.g., cell service. Skilled persons would thus understand the base station “range” could be the
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`typical range of a cell tower – which is certainly remote from a cellphone.11 Finally, Defendants
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`themselves have admitted that the specification discloses that “[t]he system can communicate
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`11
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`10
`It is unclear what this clause means, but perhaps it means a base station close to the
`claimed devices.
`Defendants’ own extrinsic evidence likewise confirms this point, as it recognizes that
`base stations can “provide[] radio communication service with mobile stations” and can
`be used for “carrying out a radio communication service with mobile or fixed radio
`stations.” Defendant Op. Brief Exhibits F & H.
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`9
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`UA-1011.012
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`Case 1:14-cv-00130-GMS Document 93 Filed 04/06/15 Page 13 of 23 PageID #: 7001
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`with a remote base station: ‘base station or personal computer may interact with the MPN, to
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`download software, data, and settings, and to upload data that may have been collected by the
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`MPN.’” J.A. at Tab 13, A1045 (emphasis added) (UA IPR Pet. Citing ’815 Patent, at 3:57-60).
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`Separate: Defendants’ acknowledge that the claim language does not address whether the
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`base station is, or is not, worn or carried. (D.I. 86 at 13). They suggest that this means that it
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`must be stationary, but, given other claim language identifying specific devices to be worn or
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`carried and omitting that requirement as to the base station, communication device and database,
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`the correct inference is that the patentee intended the base station to be either fixed or
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`worn/carried. See Phillips, 415 F.3d at 1314-15 (noting the absence of words and limitations
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`indicates a broader meaning). That inference is particularly appropriate given that the
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`specification plainly discloses that the “base station” may be incorporated into one or more of the
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`“INCs” or individual network components that are worn or carried. J.A. at Tab 3, col. 5:50-52,
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`6:22, 7:35-40, 15:47-53, 16:41-43, 18:58-59.
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`Defendants nonetheless try to support their argument by pointing out that one disclosed
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`embodiment allows the base station to be fixed and, thus, separate from the worn devices. This
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`is insufficient to justify their construction. See Phillips, 415 F.3d at 1323 (warning against
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`limiting claims to specific embodiments). Other embodiments directly contradict Defendants’
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`construction. The specification explains that “INCs may be worn by the user [or] they may be
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`carried by the user.” J.A. at Tab 3, col. 5:50-52; accord id. 15:47-53. It also explains that “[o]ne
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`of the INCs in the MPN may be a ‘base station’”(id. at 6:22), in which embodiment it
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`“provide[s] wireless connectivity to one or more of the other INCs.” Id. at 6:26-28; see also id.
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`at Fig. 15 & 25:12-42. In short, Defendants again seek improperly to construe the claims to omit
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`disclosed embodiments.
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`10
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`UA-1011.013
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`

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`Case 1:14-cv-00130-GMS Document 93 Filed 04/06/15 Page 14 of 23 PageID #: 7002
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`Communications Limitations: The base station may be either an INC, as noted, or one of
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`several devices – a PC, a card in a PC, a docking station connected to a PC or another device or
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`configuration. Id. at 23:50-54. Depending on the device used to implement the base station, it
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`provides the ability to access, receive, send, or relay information to or from the claimed devices.
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`See, e.g., J.A. at Tab 3, col. 3:57-60, 6:22-35, 7:33-34, 16:33-60. For example, if a PC is used to
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`implement the base station, all of those functions may be enabled, while the card or docking
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`station allows the base station to relay data between the computer and any of the claimed
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`devices. See id. at 16:33-60. But the specification repeatedly advises that these functions merely
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`“may” be implemented in the base station. See, e.g., id. at 3:58, 6:23, 16:44.
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`Defendants nonetheless ignore this disclosure and insist that the base station be limited to
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`something that allows communication, albeit only between “the devices” on the one hand and, on
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`the other, a “personal computer or network.” By this construction, Defendants seek to limit the
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`base station in multiple ways, none of which is supported.
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`Defendants nowhere identify any disclaimer or other evidence that would limit the base
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`station to simply allowing communication. The specification likewise demonstrates the fallacy
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`of Defendants’ construction. As to the first point, the specification is clear that what allows for
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`communication is simply a connection to the base station – whether wireless, “a serial cable,
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`USB, a docking station, infrared, or other connection.” J.A. at Tab 3, col. 16:36-40. Although
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`this disclosure shows the base station can receive or send data, nothing requires the base station
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`itself to allow communications between devices. To the contrary, the wires, infrared or wireless
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`communication devices form the path that allows for communication. Moreover, the
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`specification points out that the base station may allow the user to control or download data and
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`settings to the INCs (J.A. at Tab 3, col. 16:43-51), or may be used to “store[], display[] or
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`11
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`UA-1011.014
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`Case 1:14-cv-00130-GMS Document 93 Filed 04/06/15 Page 15 of 23 PageID #: 7003
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`analyze[]” uploaded data. Id. at 28:48-53; see also id. at 57:19-23. Yet, Defendants’
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`construction would simply erase these capabilities from the claimed base station.
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`Defendants nonetheless insist that “the base station serves as an interconnection point to
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`communicate data from the MPN to a network or personal computer.” (D.I. 86 at 14.)
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`Defendants claim that “throughout the specification a base station is described as the link
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`between the MPN and anything outside the MPN.” Id. The specification cited above
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`demonstrates this is not correct. In fact, Defendants’ own string cite belies their position,
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`indicating the base station can receive uploaded data (J.A. at Tab 3, col. 7:33-34; 9:34-36; 28:45-
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`52; 36:14-18; 57:19-24; 69:32-36), download data (8:63-65; 26:33-35), or can communicate with
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`the INCs (25:27-42). The remaining three cites only state the base station “may” be used to
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`interact with another network. See id. at 3:57-62 (“MPN may interact with … the Internet[]
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`using the base station”); 6:22-55 (“[t]he base station or personal computer may also have … an
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`Internet connection”); 16:33-60 (“If desired, personal computer 16 may communicate with
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`another computer 1812 over a wide area network 17, such as the Internet.”).
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`The “may” language in these citations is certainly not a disclaimer that limits the base
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`station’s capability. See i4i Ltd. P'ship v. Microsoft Corp., 598 F.3d 831, 844 (Fed. Cir. 2010)
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`(holding that “permissive language” such as “can” in specification did not narrow the claim
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`term); Intellect Wireless, Inc. v. Kyocera Commc'ns, Inc., No. 08 C 1350, 2010 WL 2680538, at
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`*11 (N.D. Ill. June 29, 2010)(holding that “may” was permissive language that did not constrain
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`claim terms to descriptions in the specification). Instead, it shows that the “interconnection”
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`capability is one of several capabilities the base station may provide. Moreover, the overall
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`12
`Notably, this disclosure of communicating with “another” computer also demonstrates
`that Defendants’ effort to limit relayed information to a “personal” computer is likewise
`flawed.
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`12
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`UA-1011.015
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`

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`Case 1:14-cv-00130-GMS Document 93 Filed 04/06/15 Page 16 of 23 PageID #: 7004
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`disclosure makes plain that there is no requirement the base station act only as an intermediary
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`between the devices and a PC or network. To the contrary, the specification explains that “base
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`station 15 may download software, data, settings, and other information to one or more INCs.”
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`J.A. at Tab 3, col. 16:44-45. Likewise, the base station may receive data from any of the claimed
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`devices. See, e.g., id. at 25:54-62 (control unit or other INC sends data to base station); 28:45-
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`53 (sensor data uploaded to base station); 36:16-18 (collected time data uploaded to base
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`station); 41:13-14 (position information uploaded to base station). And, the base station may also
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`allow for uploading data from and amongst the devices themselves. Id. at 25:27-30 & Fig. 15.
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`Finally, Defendants conclude with a critique of Plaintiffs’ infringement contentions,
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`complaining that Plaintiffs identify the server or computer by which users access data sent from
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`the accused devices. (D.I. 86 at 14-15.) That demonstrates the litigation-driven nature of their
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`constructions. Moreover, the complaint is entirely unjustifie